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Garces v. Degadeo

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 21, 2008

LUIS GARCES, PLAINTIFF,
v.
DEGADEO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DENYING MOTIONS FOR DEPOSITION SUBPOENAS AND TO COMPEL RESPONSE TO INMATE APPEAL (Docs. 55 and 56)

Plaintiff Luis Garces ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's amended complaint, filed March 26, 2007, against Defendants Smith, Diguadio, and Bott for failing to protect Plaintiff, in violation of the Eighth Amendment. Pursuant to the Court's order of July 22, 2008, this action is in the discovery phase. On August 13, 2008, Plaintiff filed a motion seeking the issuance of subpoenas commanding non-party witnesses Lt. Baires, D. Smith, and D. Daniel to appear for a deposition and bring records with them. Attached to the motion are interrogatories. Plaintiff filed a second motion seeking an order compelling prison officials to respond to Plaintiff's inmate appeal so that he may complete the administrative remedy process. For the reasons set forth below, Plaintiff's motions are denied.

Plaintiff may not propound interrogatories on non-parties. Fed. R. Civ. P. 33. Therefore, the interrogatories attached to Plaintiff's motion are disregarded. Further, Plaintiff may not depose any parties or non-parties orally or in writing unless he has the ability to comply with Federal Rules of Civil Procedure 30 and 31, which includes arranging for the recording of the deposition before an officer designated in compliance with Federal Rule of Civil Procedure 28. Plaintiff has made no showing that he has the ability to retain and compensate an officer to take the depositions.

Subject to certain requirements set forth herein, Plaintiff is entitled to the issuance of a subpoena commanding the production of documents from non-parties, and to service of the subpoena by the United States Marshal. Fed. R. Civ. P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request only if the documents sought from the non-party are not equally available to Plaintiff and are not obtainable from Defendants through a request for production of documents. Fed. R. Civ. P. 34. If Plaintiff wishes to make a request for the issuance of a records subpoena, he may file a motion requesting the issuance of a subpoena duces tecum that (1) identifies with specificity the documents sought and from whom, and (2) makes a showing in the motion that the records are only obtainable through that third party.

Federal Rule of Civil Procedure 37, cited to by Plaintiff in support of his motion to compel, allows a party to seek a court order compelling disclosure or discovery. Rule 37 applies to discovery. It does not serve the purpose of allowing Plaintiff to compel a non-party to take action unrelated to discovery.

For the reasons set forth above, Plaintiff's motions for the issuance of subpoenas and to compel are HEREBY DENIED.

IT IS SO ORDERED.

20080821

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